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TMI Blog2009 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... r and was covered by the definition of services. Coming to the question of suppression, in view of the fact that the assessee himself had surrendered the registration certificate on 1.6.2005 and within 15 days the definition changed, reasonable argument would be that the assessee was aware of the amendment in the law and the consequent liability to pay service tax on him. Merely because the department did not issue a show cause notice with in the specified period, the assessee could not escape the liability. The department could not be said to know that the assessee was engaged or continued to be engaged in supply of manpower. Therefore, it had to be held that the SCN was not time barred. As per section 80 penalty imposed u/s 76 and 78 is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After adjudication and appellate proceedings, the service tax demand has been confirmed with interest as applicable and penalty of Rs. 1,34,263 under section 78, penalty of Rs. 100 per day under section 76 and a penalty of Rs. 1,000 under section 77 of Finance Act, 1994 have been imposed on the appellant. Hence the appeal. 3. Learned advocate on behalf of the appellants submitted that the service provided by the appellant is not covered by the definition of manpower recruitment or supply service. He took me through the annexure to the contract entered into with Pino Bisazza Glass (P.) Ltd., and submitted that according to the contract, appellant was only expected to ensure that the factory premises is kept clean, bath rooms, and toilets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of nature of work to be carried out and the payment is not related to the quantum of work but to the actual number of labourers supplied. As regards suppression he submits that it cannot be said that appellant was not aware in view of the fact that within fifteen days of his surrendering the registration certificate, the amendment was carried out in the definition. 5. I have considered the submissions made by both the sides. First of all it is required to be examined whether the service is covered by the definition or not? To appreciate the facts better, the annexure to the contract which is relevant and which is very briefly worded is reproduced below : "Rate : 1. Housekeeping works is as per Minimum Wages Act. 2. Material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the annexure, the actual quantum of work to be done is indicated. Further, the contract also requires the contractor to provide labourers as per the company's requirement for housekeeping work, for loading and unloading purpose etc. The payment to be made by the company is related to the number of labourers supplied during a specific period and not related to the quantum of work carried out. For example, in case of housekeeping work, it can be related to the area of the building to be cleaned which can be given in square feet. In the case of loading and unloading it can be number of trucks or the weight of the goods loading and unloading etc. whereas both these items do not find place in the contract. Therefore, I am unable to appreciate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the order was passed by the Original Adjudicating Authority on 3-10-2007, no one seems to have verified the correctness of the amount paid already. Learned advocate or the learned DR are unable to help as regards the correctness of the amounts paid. Further, as already mentioned earlier, we do not know what happened to the demand for the period subsequent to 31-3-2006. In view of the fact that the contract, the way it is worded can be interpreted by an ordinary person as the appellant has and he cannot be faulted if he thinks that he would not be covered by the service, he cannot be blamed. In view of this factor, I feel that this is a fit case for applying the provisions of section 80 of the Finance Act, 1994 and to take a lenient view a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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